Emoshia Duncan v. Commonwealth of Kentucky

RENDERED: NOVEMBER 5, 2021; 10:00 A.M.
TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2021-CA-0019-MR

EMOSHIA DUNCAN APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NOS. 04-CR-00245-001 & 05-CR-00663

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION
REVERSING AND REMANDING

** ** ** ** **

BEFORE: ACREE, COMBS, AND MAZE, JUDGES.

MAZE, JUDGE: Emoshia Duncan appeals from an order of the Fayette Circuit

Court denying his motion to vacate or correct his sentence pursuant to CR1

60.02(e). We conclude that the trial court abused its discretion by denying the

1
Kentucky Rules of Civil Procedure.
motion because Duncan’s sentence exceeded the maximum authorized by statute.

Hence, we reverse and remand with directions to grant the motion and impose a

new sentence within the statutory range.

On July 22, 2005, Duncan entered a conditional guilty plea to second-

degree robbery, possession of a handgun by a convicted felon, first-degree fleeing

or evading police, first-degree wanton endangerment, and being a persistent felony

offender in the first degree. In exchange for his guilty plea, the Commonwealth

agreed to dismiss several other felony charges and to recommend a total sentence

of twenty-seven years’ imprisonment. After accepting Duncan’s guilty plea, the

trial court imposed the recommended sentence. The Kentucky Supreme Court

affirmed Duncan’s conviction on the issues he reserved for appeal. Duncan v.

Commonwealth, No. 2005-SC-0760-MR, 2006 WL 2456353 (Ky. Aug. 24, 2006).

No further pleadings appear in the record until January 14, 2020,

when Duncan filed his current CR 60.02 motion. Duncan argued that his sentence

exceeds the statutory twenty-year limit for aggregated sentences involving Class C

or Class D felonies. See KRS2 532.110(1)(c) and KRS 532.080(6)(b). He also

pointed to the holding in McClanahan v. Commonwealth, 308 S.W.3d 694 (Ky.

2010), which held such sentences void even when the defendant agreed to the

2
Kentucky Revised Statutes.

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sentence. Id. at 700-01. Consequently, Duncan argued that his sentence must be

vacated and a new sentence of twenty years or less must be imposed.

The Commonwealth argued, and the trial court agreed, that the

holding in McClanahan could not be applied retroactively. Since Duncan’s

sentence was valid under the case law at the time it was entered, the trial court

concluded that Duncan was bound by the terms of his plea agreement. Duncan

now appeals from the trial court’s order denying his motion for relief under CR

60.02.

Duncan argues that he is entitled to relief under CR 60.02(e) because

the sentence imposed is void as a matter of law. He first focuses on the language

of KRS 532.110(1)(c), which provides as follows:

(1) When multiple sentences of imprisonment are
imposed on a defendant for more than one (1) crime
. . . except that:

(c) The aggregate of consecutive indeterminate
terms shall not exceed in maximum length the
longest extended term which would be authorized by
KRS 532.080 for the highest class of crime for
which any of the sentences is imposed. In no event
shall the aggregate of consecutive indeterminate
terms exceed seventy (70) years[.]

(Emphasis added.)

Duncan further notes that KRS 532.080(6)(b) provides, in pertinent

part:

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 If the offense for which he presently stands convicted is a
Class C or Class D felony, a persistent felony offender in
the first degree shall be sentenced to an indeterminate
term of imprisonment, the maximum of which shall not
be less than ten (10) years nor more than twenty (20)
years.

(Emphasis added.)

Both statutes were in effect at the time Duncan entered his plea.

However, the controlling case law at the time allowed a defendant to waive the

maximum aggregate sentence limitation in KRS 532.110(1)(c) that otherwise

would operate to his benefit. See Johnson v. Commonwealth, 90 S.W.3d 39, 44

(Ky. 2002), as modified (Jan. 13, 2003) and Myers v. Commonwealth, 42 S.W.3d

594, 597 (Ky. 2001).

After Duncan entered his plea, the Kentucky Supreme Court revisited

the holdings of Johnson and Meyers in McClanahan. As in the current case, the

defendant in McClanahan was charged with multiple Class C and Class D felonies.

The defendant entered a guilty plea agreeing to a combination of consecutive and

concurrent sentences which included a “hammer clause.” As long as the defendant

complied with the conditions of his release, the defendant would receive a total of

ten-years’ imprisonment. But if the defendant breached those conditions, he would

be subject to consecutive sentences totaling forty years. McClanahan, 308 S.W.3d

at 696.

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 When the defendant failed to appear for final sentencing and incurred

additional criminal charges, the court invoked the hammer clause and imposed a

thirty-five year sentence. Id. at 697. On appeal, the defendant argued that the

sentence exceeded the twenty-year maximum permitted by KRS 532.110(1)(c) and

KRS 532.080(6)(b). The Kentucky Supreme Court recognized that, under Johnson

and Myers, a defendant could waive the statutory maximum sentence.

McClanahan, 308 S.W.3d at 701.

Nevertheless, the Court found nothing in the language of the statutes

to suggest that the General Assembly intended to excuse plea agreements from the

mandatory provisions regarding the maximum aggregate sentence. Id. The Court

further held that a trial court has no authority to impose a sentence outside of the

statutory range.

Whether recommended by an errant jury or by the parties
through a plea agreement, a sentence that is outside the
limits established by the statutes is still an illegal
sentence. We do not see how an illegal sentence set by a
jury . . . does any more to “nullify the sentencing laws”
than an illegal sentence imposed by a judge pursuant to a
plea agreement. There is no sound rationale by which we
should condemn the one as we condone the other. Under
our Constitution, it is the legislative branch that by
statute establishes the ranges of punishments for criminal
conduct. It is error for a trial jury to disregard the
sentencing limits established by the legislature, and no
less erroneous for a trial judge to do so by the acceptance
of a plea agreement that disregards those statutes.

Id.

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 Based on the holding of McClanahan, Duncan’s twenty-seven year

sentence would be clearly impermissible. However, there has been some question

whether the holding is retroactive to sentences which became final before

McClanahan was rendered. In an unpublished case, Rothfuss v. Commonwealth,

No. 2010-CA-000117-MR, 2010 WL 3361769 (Ky. App. Aug. 27, 2010), this

Court held that the holding of McClanahan may not be applied retroactively to

guilty pleas which were valid at the time they were entered.

We are aware that Myers and Johnson were recently
overruled by our Supreme Court in McClanahan v.
Commonwealth, 308 S.W.3d 694 (Ky. 2010), wherein the
Court held any sentence imposed in excess of that
allowed by KRS 532.110(1)(c) is void and
unenforceable, regardless of whether the defendant had
consented to such a sentence. However, the holding in
McClanahan cannot be applied retroactively to justify the
relief Rothfuss seeks. See Leonard v. Commonwealth,
279 S.W.3d 151, 160-61 (Ky. 2009) (generally, decisions
are not applied retroactively). . . . Rothfuss has pointed
us to no facts allowing us to conclude there are strong
equities requiring a departure from the proscription
against retroactive application of new decisions. To the
contrary, Rothfuss has enjoyed a reduction in his charges
from Class A felonies carrying the potential for a
seventy-year term of imprisonment to Class C felonies
carrying an actual sentence of only twenty-five years. In
addition, Rothfuss is parole-eligible after serving twenty
percent of his sentence rather than the eighty-five percent
he would have been required to serve had he been
convicted of the higher offenses. Finally, we note that
although his conviction is nearly a decade old and he has
had ample opportunity to do so, Rothfuss has not
previously attacked his conviction and sentence on any

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 ground. Thus, we conclude equity does not demand
retroactive application of McClanahan.
Id. at *2.

This Court has followed the holding in Rothfuss in three other

unpublished cases. Eads v. Commonwealth, No. 2010-CA-001318-MR, 2012 WL

512487 (Ky. App. Feb. 17, 2012); Hall v. Commonwealth, No. 2015-CA-001315-

MR, 2016 WL 1558505 (Ky. App. Apr. 15, 2016); and Berry v. Commonwealth,

No. 2015-CA-001897-MR, 2017 WL 4712777 (Ky. App. Oct. 20, 2017). The trial

court relied upon these cases in its conclusion that McClanahan cannot be applied

retroactively to Duncan’s sentence. Although we cannot fault the trial court for

following this Court’s interpretation, we must conclude that the conclusion was

erroneous as a matter of law.

We agree with the trial court that “[u]nless they fall within an

exception to the general rule, new constitutional rules of criminal procedure will

not be applicable to those cases which have become final before the new rules are

announced.” Leonard, 279 S.W.3d at 159 (quoting Teague v. Lane, 489 U.S. 288,

310, 109 S. Ct. 1060, 1075, 103 L. Ed. 2d 334 (1989)). But in Phon v.

Commonwealth, 545 S.W.3d 284 (Ky. 2018), the Kentucky Supreme Court

distinguished between a new rule of procedural or constitutional law and a

subsequent interpretation of a statute that was in effect at the time of sentencing.

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Id. at 301. In the case of the latter, the Court held that the new interpretation of a

sentencing statute must be applied retroactively. Id.

The Court in Phon then went on to discuss the rule in McClanahan

that a trial court lacks jurisdiction to impose a sentence outside the limits

established by the statutes. Id. at 302 (citing McClanahan, 308 S.W.3d at 701).

Thus, when a court imposes a sentence outside of the statutorily permissible range,

the issue is jurisdictional and subject to correction at any time.

It is logical that such illegal sentences are
considered void and correctable at any time, as contrasted
to an attack on the underlying conviction. If the sentence
goes beyond the jurisdiction of the court imposing it,
then it must be considered a legal nullity. The Supreme
Court in Tennessee has determined that “trial courts lack
jurisdiction to impose sentences not available under the
sentencing statutes governing the case.” Edwards [v.
State, 269 S.W.3d 915, 921 (Tenn. 2008)]. In such
Circumstances [sic], the “sentences are illegal,
amounting to jurisdictional defects’ that render the
judgments imposing them void[.]” Id. (internal citation
omitted). Even a guilty plea cannot waive this particular
error because it cannot “confer jurisdiction upon the trial
court to impose a sentence not available under governing
statutes.” Id. (internal citations omitted).

Id. at 305-06.

Because the sentence imposed in Phon was not statutorily authorized,

the Court found that it was void even though the defendant had accepted it as part

of his plea agreement. Id. at 302-03. Similarly, Duncan’s sentence fell outside the

statutorily permissible range existing at the time of his guilty plea. In Phon, the

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statutory scheme had not changed and there was no case law holding that the

sentencing limits could be waived.3 In McClanahan, by contrast, the Court

specifically overruled its own prior precedent holding that a defendant could waive

the statutory maximum sentence.

Nevertheless, we find that this distinction is not controlling. The

Court in McClanahan expressly held such sentences to be outside of the

jurisdiction of the court to impose and therefore void ab initio. McClanahan, 308

S.W.3d at 701. Since we are constrained to follow the directives set out in

McClanahan and Phon, we cannot continue to apply the holdings in Rothfuss and

its progeny.4 See SCR5 1.030(8)(a).

Generally, a trial court’s denial of a CR 60.02 motion will not be

overturned absent an abuse of discretion. Age v. Age, 340 S.W.3d 88, 94 (Ky.

App. 2011). However, a void judgment is a legal nullity, and a court has no

discretion in determining whether it should be set aside. Phon, 545 S.W.3d at 307

3
We note, however, that the Kentucky Supreme Court had expressly authorized Phon’s request
to include life without parole as an available sentence. Commonwealth v. Phon, 17 S.W.3d 106,
108 (Ky. 2000).
4
We note that another panel of this Court recently reached the same conclusion in Berry v.
Commonwealth, No. 2020-CA-0046-MR, 2021 WL 2484036 (Ky. App. Jun. 18, 2021). That
opinion was designated as “Not to Be Published.” Discretionary review was denied by the
Kentucky Supreme Court on September 22, 2021. Case No. 2021-SC-0270-D.
5
Kentucky Rules of the Supreme Court.

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(citations omitted). In this case, Duncan’s twenty-seven year sentence exceeded

the statutory maximum permissible at the time he entered his guilty plea.

Consequently, the trial court must vacate the excess portion of Duncan’s sentence

and impose a new sentence in accord with the law.

Accordingly, we reverse the order of the Fayette Circuit Court

denying Duncan’s CR 60.02 motion, and we remand this matter with directions to

vacate his sentence and impose a new sentence not to exceed twenty years.

COMBS, JUDGE, CONCURS.

ACREE, JUDGE, CONCURS IN RESULT ONLY AND FILES
SEPARATE OPINION.

ACREE, JUDGE, CONCURRING: I concur but write separately to

urge consideration of how Kentucky courts should address CR 60.02 motions

predicated on jurisprudential changes in the law–a question that is wildly unsettled

elsewhere.6

Notwithstanding the rule in Teague v. Lane,7 this Court should review

these motions following the same analysis that now-Justice Nickell used in

6
See Crutsinger v. Davis, 140 S. Ct. 2, 3, 204 L. Ed. 2d 1188 (2019) (Sotomayor, J., concurring
in denial of certiorari) (acknowledging a circuit split spearheaded by the Third Circuit and the
Fifth Circuit concerning whether jurisprudential changes in the law constitute an extraordinary
circumstance under Federal Rules of Civil Procedure 60(b)(6)).
7
“Unless they fall within an exception to the general rule, new constitutional rules of criminal
procedure will not be applicable to those cases which have become final before the new rules are
announced.” Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 1075, 103 L. Ed. 2d 334
(1989). As such, new constitution rules of criminal procedure should be carved out of the

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Rothfuss v. Commonwealth, No. 2010-CA-000117-MR, 2010 WL 3361769, at *1-

2 (Ky. App. Aug. 27, 2010). Doing so yields the same result, but by means of a

framework instructive to our circuit courts tasked with determining if CR 60.02

relief is appropriate after a change in law. As written, the majority Opinion does

not offer such guidance as would optimize uniformity. To create this, it is

imperative we bear in mind the case’s procedural posture in the circuit court.8

To begin, Kentucky’s CR 60.02 is nearly identical to FRCP9 60(b).10

Both provide relief from a final judgment for the same five enumerated reasons,

plus one catchall provision. Compare CR 60.02 with FRCP 60(b). Advocates

routinely use both procedural rules to challenge convictions and sentences after a

jurisprudential change in the law occurs. See, e.g., Gonzalez v. Crosby, 545 U.S.

524, 125 S. Ct. 2641, 162 L. Ed. 2d 480 (2005); see also Phon v. Commonwealth,

framework addressed here. However, it is also important to note we are not tasked with
reviewing a new constitutional rule of criminal procedure. CR 60.02 is a rule of civil procedure
and the case sub judice, as a CR 60.02 procedure, is also civil.
8
Again, review of Duncan’s sentence comes by way of CR 60.02(e) motion. It does not arise
from the criminal proceedings themselves.
9
Federal Rules of Civil Procedure.
10
A federal court’s handling of a FRCP 60(b) motion predicated on a change in the law is
directly analogous to Kentucky circuit courts facing Kentucky’s version of this motion. Both
Rothfuss and the federal body of law analyzed in this concurrence are, at best, merely persuasive
as to how to handle these motions. They are informative here because there is no discernable
Kentucky authority for us to follow. See CR 76.28(4)(c) (“unpublished Kentucky appellate
decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is
no published opinion that would adequately address the issue before the court.”).

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545 S.W.3d 284 (Ky. 2018); Land v. Commonwealth, 986 S.W.2d 440 (Ky. 1999);

Bynoe v. Baca, 966 F.3d 972 (9th Cir. 2020); Satterfield v. Dist. Att’y

Philadelphia, 872 F.3d 152 (3d Cir. 2017). Unsurprisingly, both procedural rules

apply proportionally the same standard to grant relief from a final judgment.

Under CR 60.02, a court cannot grant relief from a final judgment on

grounds that a jurisprudential change in the law occurred, except in “aggravated

cases where there are strong equities.” Reed v. Reed, 484 S.W.2d 844, 847 (Ky.

1972). Under FRCP 60(b)(6), district courts may only grant relief in the face of an

“extraordinary circumstance.” See Ackermann v. United States, 340 U.S. 193, 199,

202, 71 S. Ct. 209, 212-13, 95 L. Ed. 207 (1950); Klapprott v. United States, 335

U.S. 601, 69 S. Ct. 384, 93 L. Ed. 266 (1949). The United States Supreme Court

set the goalposts for what constitutes an extraordinary circumstance in Ackermann

and Klapprott. In Ackermann, the petitioner challenged a judgment terminating his

citizenship under FRCP 60(b)(6), but the United States Supreme Court held

Ackermann’s situation was not extraordinary because he voluntarily chose not to

appeal the judgment. Ackermann, 340 U.S. at 195-96, 200, 202, 71 S. Ct. at 210,

212-13. By stark contrast, in Klapprott, the United States federal government

terminated Klapprott’s United States citizenship “without evidence, a hearing, or

the benefit of counsel, at a time when his Government was then holding the citizen

in jail with no reasonable opportunity for him effectively to defend his right to

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citizenship.” Klapprott, 335 U.S. at 615, 69 S. Ct. at 390. In comparing the two

situations, the United States Supreme Court stated Ackermann’s “voluntary,

deliberate, free, untrammeled choice . . . not to appeal” could “[b]y no stretch of

[the] imagination” compare to Klapprott’s situation. Ackermann, 340 U.S. at 200,

71 S. Ct. at 212.

However, federal courts display confusion when applying this

standard to determine whether new Supreme Court precedent justifies using FRCP

60(b) to overturn a previous final judgment incongruent with new jurisprudential

law.11 The confusion stems from misapplication of Gonzalez v. Crosby, 545 U.S.

524, 125 S. Ct. 2641, 162 L. Ed. 2d 480 (2005), whereby several federal circuit

courts use Justice Scalia’s reasoning in Gonzalez errantly and bar all movants from

seeking relief after a jurisprudential change in the law under FRCP 60(b)(6).12

While this may seem irrelevant, in reviewing Rothfuss, Justice Nickell resolved the

CR 60.02(e) and (f) motion predicated on a change in law at issue there using the

framework Justice Scalia utilized in Gonzalez.

11
See Andrew P. Lopiano, Comment, Dumplings Instead of Flowers: The Need for a Case-By-
Case Approach to FRCP 60(B)(6) Motions Predicated on a Change in Habeas Corpus Law, 15
LIBERTY U. L. REV. 111 (Fall 2020).
12
Lopiano, supra n.11, at 124-29 (analyzing the potentially errant interpretation of Gonzalez
giving rise to vastly disparate treatments of FRCP 60(b)(6) motions predicated on a change in the
law by the federal circuit courts).

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 In Gonzalez, the petitioner filed a habeas petition twelve years after

conviction, and the district court denied it because it was untimely. Gonzalez, 545

U.S. at 526-27, 125 S. Ct. at 2644-45. Subsequently, the United States Supreme

Court changed the rules for timeliness of habeas petitions in Artuz v. Bennett, 531

U.S. 4, 121 S. Ct. 361, 148 L. Ed. 2d 213 (2000). Gonzalez brought a FRCP

60(b)(6) motion stating Artuz constituted an extraordinary circumstance and

arguing he was entitled to relief. Gonzalez, 545 U.S. at 527, 125 S. Ct. at 2645.

The Supreme Court denied it, stating Artuz was not an extraordinary circumstance.

Id. at 536-37, 125 S. Ct. at 2650-51. To reach this conclusion, Justice Scalia first

analyzed the change in the law by itself, determining that a change in the law alone

is generally not enough to constitute an extraordinary circumstance. Id. at 536,

125 S. Ct. at 2650. (“[I]t is hardly extraordinary that subsequently, after

petitioner’s case was no longer pending, this Court arrived at a different

interpretation.”); but see Crutsinger, 140 S. Ct. at 3 (Sotomayor, J., concurring in

denial of certiorari) (“Several Circuits recognize that a change in . . . law, by itself,

may justify Rule 60(b)(6) relief.”). Justice Scalia went on to analyze the

petitioner’s diligence, or lack thereof, in challenging his conviction. Gonzalez, 545

U.S. at 537, 125 S. Ct. at 2651. This Court followed that same analytical process

in Rothfuss. Rothfuss, 2010 WL 3361769, at *2.

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 When reviewing the CR 60.02 motion in Rothfuss, this Court first

looked to the jurisprudential change in the law itself, addressing how McClanahan

v. Commonwealth, 308 S.W.3d 694 (Ky. 2010), overruled Myers v. Commonwealth

and Johnson v. Commonwealth,13 which created a change in jurisprudential law.

Rothfuss, 2010 WL 3361769 at *1-2. We decided McClanahan could not be

applied retroactively, determining that McClanahan did not constitute “strong

equities.” Id. at *2. After reaching this conclusion, we then analyzed Rothfuss’s

diligence in challenging his conviction and the length of his sentence, stating: “we

note that although his conviction is nearly a decade old and he has had ample

opportunity to do so, Rothfuss has not previously attacked his conviction and

sentence on any ground.” Id. This Court determined that Rothfuss’s failure to act

did not create strong equities when paired with a change in the law. Id. By way of

comparison, Rothfuss’s situation appeared more like Ackermann’s failure to

pursue relief, and unlike the injustice Klapprott faced.

13
Myers v. Commonwealth, 42 S.W.3d 594 (Ky. 2001); Johnson v. Commonwealth, 90 S.W.3d
39 (Ky. 2002), as modified (Jan. 13, 2003). In Rothfuss, this Court used these two cases for the
proposition that before McClanahan, a criminal defendant could waive the statutory maximum
for a prison sentence in a plea agreement to be incarcerated for a period longer than the statutory
maximum. Rothfuss, 2010 WL 3361769, at *1-2.

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 Thus, applying Rothfuss,14 and by way of analogy, Gonzalez, we must

first decide if McClanahan constitutes “strong equities.” Only under rare

circumstances should a change in the law alone constitute strong equities for

purposes of CR 60.02, similar to FRCP 60(b)(6). Otherwise, a court should weigh

“the risk of injustice to the parties” and “the risk of undermining the public’s

confidence in the judicial process[,]” including finality of judgments, which is

relevant here. Buck v. Davis, 137 S. Ct. 759, 778, 197 L. Ed. 2d 1 (2017) (quoting

Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863-64, 108 S. Ct.

2194, 100 L. Ed. 2d 855 (1988)).

Fortunately for this Court, the Supreme Court of Kentucky in Phon

impliedly engaged in this first step of analysis by discussing the equities of

McClanahan and the unjust potential for criminal defendants to serve sentences

longer than the statutory maximum–an outcome undoubtedly undermining public

confidence in our criminal judicial system.

Thus, as did the majority, we can look to the Supreme Court of

Kentucky’s decision in Phon and readily conclude McClanahan’s change in the

law alone constitutes strong equities. In Phon, our Supreme Court held courts

could not uphold any sentence that lasts longer than the statutory maximum

14
The Supreme Court of Kentucky’s holding in Phon rebuts the conclusion in Rothfuss that
McClanahan did not constitute strong equities; however, Phon did not reject the framework
Rothfuss used, as discussed throughout this concurrence.

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punishment. Phon, 545 S.W.3d at 302. This appears to be a bright-line rule with

no exception and, therefore, Phon implicitly greenlights the majority’s decision to

retroactively apply McClanahan. Anything short of a bright-line rule here likely

violates the separation of powers doctrine enshrined in Sections 27 and 28 of the

Kentucky Constitution. Id. at 302-03. Speaking to the equities, the Supreme Court

quoted McClanahan, stating: “Our courts must not be complicit in the violation of

the public policy embedded in our sentencing statutes by turning a blind eye to an

unlawful sentence, regardless of a defendant’s consent.” Id. at 302 (citing

McClanahan, 308 S.W.3d at 701). Thus, applying this framework for reviewing

CR 60.02 motions predicated on a change in the law, we can readily conclude that

McClanahan, alone, identifies the necessary strong equities. Consequently, this

Court should reverse the Fayette Circuit Court order.

However, if a jurisprudential change in the law alone did not

constitute strong equities, we must continue our analysis and look to the facts and

circumstances of a case–just as Justice Nickell did in Rothfuss and just as Justice

Scalia did in Gonzalez. It would be unjust to require judges outright to deny relief

from CR 60.02 motions predicated on a change in the law.15 As the Third Circuit

stated, a court addressing a post-conviction motion for relief from a judgment

15
See Lopiano, supra n.11, at 147-50; see also Satterfield v. Dist. Att’y Philadelphia, 872 F.3d
152 (3d Cir. 2017).

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“must examine the full panoply of equitable circumstances . . . before rendering a

decision.” Satterfield, 872 F.3d at 155. Taking this approach would put our courts

in lockstep with the Sixth Circuit, which stated “the decision to grant Rule 60(b)(6)

relief is a case-by-case inquiry that requires the trial court to intensively balance

numerous factors[.]” Stokes v. Williams, 475 F.3d 732, 736 (6th Cir. 2007)

(citations omitted).

For the reviewing court in Kentucky, the ultimate question may

become whether a CR 60.02 movant diligently pursued all avenues of relief,

because of the heavy emphasis placed on this consideration in Gonzalez and

Rothfuss. This would be in line with other unpublished cases from this Court. In

Commonwealth v. Hayes, this Court reversed relief granted pursuant to a CR 60.02

motion predicated on a change in the law where the movant was convicted forty

years before the motion, but his CR 60.02 motion came thirty-five years after the

change in law. Commonwealth v. Hayes, No. 2010-CA-001021-MR, 2011 WL

1812406, at *1-2 (Ky. App. May 13, 2011). Outside the movant’s diligence, the

Third Circuit provided a wealth of equitable factors to consider, which could

further enhance our court’s ability to determine when a change in the law, when

paired with equitable factors, constitutes sufficiently strong equities that relief

should be granted pursuant to CR 60.02. The Third Circuit’s factors include:

[1] the general desirability that a final judgment should
not be lightly disturbed; [2] the procedure provided by

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 Rule 60(b) is not a substitute for an appeal; [3] the Rule
should be liberally construed for the purpose of doing
substantial justice; [4] whether, although the motion is
made within the maximum time, if any, provided by the
Rule, the motion is made within a reasonable
time; . . . [5] whether there are any intervening equities
which make it inequitable to grant relief; [6] any other
factor that is relevant to the justice of the [order] under
attack.

Lasky v. Cont’l Prods. Corp., 804 F.2d 250, 256 (3d Cir. 1986) (alteration in

original).

Regardless of whether Appellant here vigorously challenged his

appeal, that factor could potentially carry less weight because Appellant is not

challenging his conviction, but rather the length of his sentence. Thus, the Third

Circuit’s factors could supplement and inform our analysis where a change in the

law alone might not be sufficient to constitute the necessary strong equities.

Because Appellant challenges his sentence by means of CR 60.02,

predicated on a change in the law, and because there is no existing precedent

explaining how Kentucky courts should proceed, we should analyze the motion

under the framework outlined here. That approach is consistent with Rothfuss, this

Court’s unpublished decisions, and the large swath of federal caselaw discussed.

I believe the majority reached the correct result, but it does not appear

to have reached that result in this same way. However, because the result is the

same, I concur.

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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Whitney B. Browning Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky

Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky

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